Bonum Certa Men Certa

Decades of 'Stupid' Software Patents, Tactlessly Granted by the USPTO, Have Caused a Flood of Invalidations and Now a 'Section 101 Day'

Courts continue to be overwhelmed by briefs and motions for invalidation of abstract patents, Judge Leonard Stark (chief of the new American 'rocket docket') admits

Chief Judge Leonard Stark



Summary: Stunning admission from Chief Judge Leonard Stark, who is coming to grips with the severity of the quality issue and is announcing/heralding a 'Section 101 Day'

QUALITY of patents is an important aspect of patent law. The quality of US patents -- or patents granted by the U.S. Patent and Trademark Office (USPTO) -- became the subject of much ridicule in recent decades. Going back to the days of 'Slashdot glory', people used to routinely shame patents over there. Companies like IBM were often forced (to save face) into conceding patents. At Sun, esteemed engineers had a game: let's see who manages to get the most stupid patent accepted by the USPTO. Admissions about these games came out after Oracle had bought Sun.



"At Sun, esteemed engineers had a game: let's see who manages to get the most stupid patent accepted by the USPTO."Just before this weekend the EFF's Joe Mullin announced the "Stupid Patent of the Month" (something he used to do a lot as a journalist). He now focuses on charlatans with fake patents that are software patents. To quote:

What if we allowed some people to patent the law and then demand money from the rest of us just for following it?

As anyone with a basic understanding of democratic principles can see, that is a terrible idea. In a democracy, elected representatives write laws that apply to everyone, ideally, based on the public interest. We shouldn’t let private parties “own” legal principles or use technical jargon to re-cast those principles as “inventions.”

But that’s exactly what the U.S. Patent Office has allowed two inventors, Nicholas Hall and Steven Eakin, to do. Last September, the government proclaimed that Hall and Eakin are the inventors of “Methods and Systems for User Opt-In to Data Privacy Agreements,” U.S. Patent No. 10,075,451.

The owner of this patent, a company called “Veripath,” is already filing lawsuits against companies that make privacy compliance software. With Congress and many states actively engaged in debates over consumer privacy laws, Veripath might soon be using this patent to extract licensing cash from U.S. companies as well.

[...]

Some background: Venpath, Inc., a company with a New York address that appears to be a virtual office, assigned the rights in the ’451 patent to VeriPath just days before the patent issued in September last year. As it happens, the FTC began enforcement proceedings against VenPath last September. The FTC’s complaint [PDF] alleged that VenPath’s website represented that “VenPath participates in and has certified its compliance with the EU-U.S. Privacy Shield Framework.” The FTC alleged a count of “privacy misrepresentation.” It claimed that VenPath “did not complete the steps necessary to renew its participation in the EU-U.S. Privacy Shield framework after that certification expired in October 2017.” The FTC issued a Decision and Order [PDF] requiring VenPath to remove the misrepresentations.

An exhibit [PDF] attached to the complaint shows that one of the named inventors on the patent, Nick Hall, contacted Faktor to ask what its prices were. Hall identified himself as the CEO of VenPath. Once Faktor responded, Veripath sued Faktor in federal court in New York.

In its lawsuits, Veripath claims that basic warnings about cookies on websites, a now-common method of complying with the GDPR, violate its patent. The lawsuit against Faktor notes that Faktor’s own website “might not work properly” unless a user consents to having her browser accept cookies.

[...]

Even when a patent is invalid, defendants face pressure to settle. Patent litigation is expensive and it can cost tens or hundreds of thousands of dollars just to get through the early stages. To really protect innovation we have to ensure that patents like the ’451 patent are never issued in the first place. The fact that this patent was granted shows the Patent Office is failing to apply the law.

We are currently urging the public to tell the Patent Office to stop issuing abstract software patents.


"Stupid Patent of the Month" used to be announced and/or selected by Daniel Nazer, but he recently changed jobs and now works for Mozilla.

""Stupid Patent of the Month" used to be announced and/or selected by Daniel Nazer, but he recently changed jobs and now works for Mozilla."At the start of the year we promised ourselves to focus more on the European Patent Office (EPO) and GNU/Linux, mostly at the expense of USPTO coverage, unless things take a sharp turn for the worse in the US. Two months down the line, have things gotten worse? No. Not really. But the concerns expressed above (by the EFF) are not baseless because at the moment the Office continues to grant software patents -- abstract patents that oughtn't be granted. We keep seeing more and more stories about such patents being squashed in courts; sometimes we only include them in daily links without remarking/talking about them. We have to budget our time.

Here's another example: Paltalk/PeerStream case. The Patent Trial and Appeal Board (PTAB) will probably trash the underlying patents (there's an inter partes review (IPR)), based on this new press release, but the lawyers will get money for the dispute anyway. Patents on software should never be granted by the U.S. Patent and Trademark Office (USPTO) in the first place. In case the lawsuits goes forward it can take a long time (months of legal bills); it's very expensive to take this up to the Federal Circuit, and exceptionally difficult to get SCOTUS to even listen/consider. Either way, the lawyers always win. Mind this new piece from Finnegan, Henderson, Farabow, Garrett & Dunner LLP's Adriana L. Burgy and Thomas L. Irving. They try to lure clients into lawsuits, not properly informing them about the risk. There's no "Favorable Seas"; quite the contrary.

"That's just 35 U.S.C. €§ 101 in action."In the words of this new article ("'Section 101 Day' Yields Quick Ruling On Patent Eligibility"): "Sitting behind the bench at the Wilmington, Delaware, federal courthouse, Chief Judge Leonard Stark explained that his docket had become flooded with legal briefs arguing that a patent covers ineligible material..."

That's just 35 U.S.C. €§ 101 in action. Similar things happen at the Office too, but patent maximalists such as Janal Kalis look really hard (exhaustively) for the exceptions. Here's the latest one: "The PTAB Reversed an Examiner's [35 U.S.C. €§] 101 Rejection of Claims for "producing shipping labels based on information included in a shipping uniform resource identifier" But Affirmed the Examiner's 102 and non-statutory double Patenting Rejection: https://e-foia.uspto.gov/Foia/RetrievePdf?system=BPAI&flNm=fd2017004956-02-06-2019-1 …"

Unified Patents published a string of overnight posts last night [1, 2, 3, 4]. It's going after a bunch of software patents which are leveraged in bulk by a satellite of Qualcomm. To quote Unified Patents: "Velos claims to have and seeks to license patents allegedly essential to the HEVC / H.265 standard. The ’365 patent is part of a family of patents that were originally assigned to Qualcomm Inc. and transferred to Velos Media in 2017. After conducting an independent analysis, Unified has determined that the ‘365 patent is likely unpatentable."

They are tackling several such patents (US 8,964,849, US 9,930,365 and US 9,979,981 were named last night) and they would be wise the do the same to MPEG-LA, whose cartel is a lot broader and recently chased companies in Europe for 'protection' money, even if software patents are not valid in Europe. We'll focus on Europe in our next post.

Recent Techrights' Posts

Jim Zemlin/Linux Foundation Selling Anthropic Slop After Getting Bribed for Slop Marketing ('Linux' Foundation is a Pay-to-Say For-Profit Marketing Company That Buys and Manipulates the Media Based on False Pretences)
Look what they've done to Steven Vaughan-Nichols (SJVN)
The Corrupt Lecture the Non-Corrupt - Part XX - EPO Management's Unified (One) Voice or Policy is, Doing Cocaine is OK When You're a Friend and/or Family of President Campinos
The management needs to resign to save the Office
 
Microsoft: Mass Layoffs Are "Offers" (Like "Job Offers"), Culling Experienced and Highly-Paid Staff is "Softer Workforce-reduction Strategy"
Media sites that play along with those lies don't do journalism, they're in the PR industry
Under IBM, Mass Layoffs at Red Hat No Better Than Oracle Under Larry Ellison (Treating Workers Like Disposables - Even Enemies - Overnight)
under IBM the respect for the worker (or peer) does not exist
The Slop-Amplified Fear of Privilege Escalation (Local, Not Remote) in Linux, the Kernel
we are meant to assume this is no better and no worse than Microsoft intentionally putting back doors in everything, even encryption
GitLab the Latest Company to Do Mass Layoffs and Use Slop as the Go-to Excuse (GitLab Users Should Worry Too)
This round of layoffs (disguised as something else) has nothing to do with slop ("hey hi"). It's about commercial problems.
Technology Not Meant to Last
A society apathetic towards declining production (or manufacturing) standards will end up ripped off
statCounter Cannot 'See' Chinese Operating Systems That Gain Many Millions of Users Per Month
There is no way for statCounter to recognise or show the market share of HarmonyOS
SLAPP Censorship - Part 74 Out of 200: The Basis of My Lawsuit Against Alex Graveley, Who Helps Garrett Stack the Docket in Another Continent
claim against the Serial Strangler from Microsoft
Update on Slop About "Linux"
"Linux" is a term many people are interested it, so it's not shocking that slopfarms target it
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, May 11, 2026
IRC logs for Monday, May 11, 2026
GAFAM (Microsoft) "Cloud Computing" Means Another Country's Military Accesses All Your Data
reminder that confidentiality and Clown Computing are complete opposites
Another Discrimination Lawsuit Against IBM and Workers Say IBM Culls Older Workers (Just Like Microsoft)
If IBM fails to retain some of the smartest people, then what is the future of IBM?
Gemini Links 12/05/2026: Android Nostalgia and Switching to Guix
Links for the day
Links 11/05/2026: Another Oracle Setback and Mass Layoffs in Iran
Links for the day
Gemini Links 11/05/2026: Older Can Be Faster and Textmode Workflow
Links for the day
Links 11/05/2026: The Solicitors Regulation Authority (SRA) Admits It Only Reacts When It's Too Late (Damage Already Done), Ombudsman’s Animal Cruelty HK Report
Links for the day
If It Takes You a Second to Serve (or Receive) a Page, That's Definitely Too Slow
For speeds at milliseconds (e.g. for pages to fully load in a tenth of a second) the pages must be ready to be sent as soon as they're requested
It's Not About Speed, It is About Patience and Adherence to Truth, Principles, Scientific Integrity
attacks on us only ever made us stronger - a lesson that our adversaries have learned the hard way
Cyber Show Does it Like Techrights: Static and Gemini Protocol as 'First-Class Citizen'
HTML and GemText (over Gemini Protocol) would be rendered in tandem
Libya's Share on the Web: 5.2% GNU/Linux
GNU/Linux has hit an all-time high there
SLAPP Censorship - Part 73 Out of 200: Microsoft's Graveley and Garrett Remain Closely Connected in May 2026 ("Tag-Teaming" Against Bloggers in Another Continent)
The phrase "judge a person by their friends" seems applicable here
Codecs and Software Patents - Part VI - The European Patent Office, Nokia, Microsoft, Sisvel, and More
Whatever Nokia used to be, it's certainly not an ally and a lot of the turmoil at the EPO is the fault of companies like Nokia
Discussions About When the Axe Falls at IBM/Kyndryl (11,000 Layoffs Estimated)
"Kyndryl restructuring should reduce overhead functions and reduce the number of managers that lack technical knowledge"
A World After Microsoft (and GAFAM) and After GitHub Shuts Down
the only growth area is debt
Fake News, Propaganda, and Misinformation: Microsoft Investing Money It Does Not Have in "Hey Hi" (for "Entertainment Purposes" Only)
This will not end well
Today the Whole European Patent Office (EPO) is on Strike and Next Monday an Even Bigger Strike
the media refuses to cover these and is thus complicit
The Corrupt Lecture the Non-Corrupt - Part IXX - EPO Management Speaks of Reputation and Integrity While Putting Cocaine Addicts in Management
If the EPO values its "reputation", then it needs to start by ousting the management
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, May 10, 2026
IRC logs for Sunday, May 10, 2026
Links 11/05/2026: Security Breaches, Politics, and Energy Crunch
Links for the day
Gemini Links 10/05/2026: "Accidental Cameras" and "Addictive" Interfaces in Social Control Media
Links for the day
Codecs and Software Patents - Part V - A Reminder That GAFAM and the European Patent Office (Which Serves American Monopolists) Do Considerable Harm to the Commons and Culture
some 'breaking' developments
Gemini Links 10/05/2026: Inkscape, Guix, and Alhena 5.5.8
Links for the day
The "Alicante Mafia" at the European Patent Office (EPO) Experiments With New Methods for Crushing Industrial Actions
Open letter to VP1 and the COO [...] What does this tell us about the status quo at the European Patent Office, Europe's second-largest institution?
The Corrupt Lecture the Non-Corrupt - Part XVIII - "The European Patent Office (EPO) has a zero-tolerance policy for fraud" (except when managers do it)
The guidebook of the EPO says fraud is not to be tolerated, but who enforces or revisits such "Red Lines"?
Links 10/05/2026: Hantavirus Brings Back 'Contact Tracing' Surveillance, "Staple Food Prices Soar in Iran"
Links for the day
Microsoft XBox Staff Know They're in Trouble, They Try to Unionise Ahead of Mass Layoffs
As the slang goes, it's going to be a "bloodbath"
Links 10/05/2026: Fake Suicide Notes and New EU Restrictions on Slop
Links for the day
SLAPP Censorship - Part 72 Out of 200: Microsoft's Graveley and Garrett Signed Documents That Hold Them Accountable to Truth and Liable for Lies
Such collaborations are unsavoury and apparently unprofessional, too
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, May 09, 2026
IRC logs for Saturday, May 09, 2026
Gemini Links 10/05/2026: Travelling to Van and "Dark Mode" as Passing Fad
Links for the day